THE HON MR JUSTICE MELLOR Mr Justice Mellor :
This is my Judgment from the Form of Order hearing which took a full day of argument on 11 June 2025. I decided to reserve my judgment because the arguments on costs extended beyond those discussed in the skeleton arguments, I wanted to review certain of the materials to which reference had been made and because the costs involved are substantial.
iii) EP801 was invalid for obviousness over Kobzeff.
Shortly before this hearing, the First Defendant (‘AO3’) was placed into administration on 27 May 2025. Its current status appeared to be common ground: AO3 is a Northern Irish company, so its administration is governed by the Insolvency (Northern Ireland) Order 1989. By para 44 of Schedule B1 of the Order, there is an automatic moratorium on proceedings against AO3. The administrators have not consented to DSM continuing these proceedings against AO3. DSM say they are considering making an application to the High Court of Justice in Northern Ireland for permission, but in the meantime, both sides accepted I am only able to make orders as between DSM and the second defendant, MRC. However, on liability, it is unnecessary to distinguish between the two companies because joint liability was admitted. Subject to all of that, it is convenient to refer generally to the defendants as Mara.
v) The costs incurred since the end of the liability trial.
COSTS The dispute in outline.
DSM’s total estimated costs were £4.386m. Mara’s total estimated costs were £3.135m.
ii) Second, the chargeable hours spent in the litigation. The schedules analysed costs in terms of hours spent on communications (e.g. with the court, the opposing party, with clients, experts, internally) and then a category identified as ‘Plan, Prepare, Draft, Review’ i.e. all the work done on documents. DSM’s solicitors spent more hours on that category (4653) than the total hours spent by Mara’s solicitors in the entire case (4142). DSM’s solicitors spent a total of 7932 hours in the entire case.
DSM already have costs orders in their favour relating to (a) the Licence Defence; (b) Dennis 1 and (c) CL020, said to total £228k. As I understand the position, DSM included these costs in their analysis, but Mara excluded them because they are not costs I have to determine.
DSM contended they were the overall winners. Based on that foundation, DSM contended that Mara should pay 65% of DSM’s costs, amounting to £2.876m (a sum which included £228k from the cos
